The law firm of Thompson Wigdor & Gilly has been sanctioned $15,000 for allowing a client in an employment discrimination suit to conceal that she had obtained a new job for substantially more money.
Southern District Judge William Pauley said Thompson Wigdor allowed Violet Fryer to testify at a deposition last year that she “didn’t hear back” and “didn’t get the job” when in fact she had been offered and accepted a new job at another company nearly two weeks before her testimony.
Thompson Wigdor was ordered to pay the sanction directly to Davis & Gilbert, which represents Omnicom Group Inc. in Fryer v. Omnicom Group Inc., 09 Civ. 9514. Ms. Fryer was ordered to pay $2,500 to Davis & Gilbert.
“While defendant has suffered some prejudice, the primary harm resulting from Ms. Fryer’s and Thompson Wigdor’s conduct is to the judicial process itself,” Judge Pauley said, according to a transcript of a May 20 hearing. The judge, however, did not grant the defense’s motion to dismiss the case.
Ms. Fryer was a research manager who had risen to the level of associate director at Omnicom in 2007 when she took her first maternity leave. She claims her status at the company changed in June 2008, when she gave notice that she would be taking a second maternity leave.
Ms. Fryer sued Omnicom in 2009, represented by Scott B. Gilly and Gregory N. Filosa of Thompson Wigdor. The suit claims she was demoted under a pretense as she was exercising her rights under the Family Medical Leave Act, 29 U.S.C. §2601, that the company failed to reinstate her to the same or equivalent position on her return from leave and/or that the company decided to eliminate her position while she was on leave. She sought declaratory and injunctive relief and damages for retaliatory termination.
Omnicom, represented by Davis & Gilbert, sought records and testimony from Ms. Fryer on her efforts to obtain new employment.
On Sept. 17, 2010, Ms. Fryer accepted a job with Kraft Foods. On Sept. 27, 2010, Thompson Wigdor submitted an expert report saying Ms. Fryer’s potential economic loss exceeded $1 million.
In its motion to dismiss and win sanctions, Omnicom claimed the report was based on “the false premise that Fryer would remain unemployed for years.”
“Fryer’s counsel repeatedly used this false report, implicitly supported by the absence of documents about her new job, as a benchmark to support inflated settlement demands,” Guy R. Cohen and Andrew Keisner of Davis & Gilbert state in their motion.
On Oct. 7, 2010, Ms. Fryer testified in a deposition that she either “didn’t hear back” or she “didn’t get the job.”
“That testimony was false,” Judge Pauley said at the hearing earlier this month. “It is also highly misleading, because it is clear from the tenor of the deposition and the questioner’s earlier inquiries that he was interested in whether Ms. Fryer had obtained new employment.”
Turning to counsel, Judge Pauley said the estimates in the expert’s report on Ms. Fryer’s potential economic loss “were inaccurate on the day the report was served.” Counsel could have disclosed this information before, during or after the deposition, particularly when they were engaged in settlement discussions between Oct. 12 and Oct. 20. The judge said it appeared that the firm failed to do so to extract a favorable settlement.
Judge Pauley said, “Mr. Filosa should have recognized that Ms. Fryer’s deposition testimony would mislead defendant’s counsel into believing that she had not obtained new employment.”
That became clear, the judge said, when he saw the videotape of the deposition.
“The body language and evasion is on the videotape,” he said. “It’s shocking and deeply disappointing to the court.”
Kenneth B. Thompson of Thompson Wigdor conceded at the May 20 hearing that mistakes were made but insisted they were not intentional and were not “part of any type of unconscionable scheme.” Mr. Thompson added that the firm had “taken steps…to make sure this never happens again.”
Mr. Thompson argued against the sanction of dismissal, saying that Ms. Fryer “deserves to have her case decided on the merits.”
“[I]f they did not discriminate against her in connection with her pregnancy, certainly a jury will reach that conclusion,” he said.
Judge Pauley agreed, and though he awarded the monetary sanctions, he said the matter did not warrant the extreme sanction of dismissing the case.
Mr. Cohen said yesterday that Judge Pauley has sent an important message that false and misleading statements, and in particular ones that can influence settlement negotiations, will not be tolerated, whether they are made by a party or by counsel.
Thompson Wigdor’s Mr. Gilly said yesterday, “We have the utmost respect for Judge Pauley, and accept his decision. That the Davis & Gilbert firm would publicize the judge’s decision to the Law Journal demonstrates their true motivations and strengthens our resolve in trying this case on its factual merit.”
@|Mark Hamblett can be contacted at firstname.lastname@example.org.